Citation Nr: 0911127
Decision Date: 03/25/09 Archive Date: 04/01/09
DOCKET NO. 98-03 700A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Columbia,
South Carolina
THE ISSUE
Entitlement to a total rating for compensation purposes due
to individual unemployability (TDIU).
REPRESENTATION
Appellant represented by: The American Legion
WITNESSES AT HEARING ON APPEAL
Appellant and his wife
ATTORNEY FOR THE BOARD
T. Hal Smith, Counsel
INTRODUCTION
The Veteran served on active duty from January 1961 to
January 1972.
This matter is before the Board of Veterans' Appeals (Board)
on appeal of a rating decision of the Department of Veteran's
Affairs (VA) Regional Office (RO) in Columbia, South
Carolina, which, in pertinent part, denied a TDIU. The Board
previously remanded the issue in September 2002, September
2003, June 2005, and November 2006. In the November 2006
remand, it was noted that an additional claim had been
raised. This issue was entitlement to service connection for
Charcot-Marie-Tooth-disease, to include as a residual of
exposure to Agent Orange.
Unfortunately, and for reasons explained below, in order to
comply with the legal duty to assist the Veteran, the Board
finds that it must once again remand the Veteran's claim for
a TDIU. Moreover, the claim for whether new and material
evidence has been received to reopen the claim of service
connection for Charcot-Marie-Tooth-disease must also be
considered. Note: The claim previously classified as
entitlement to service connection for Charcot-Marie-Tooth
disease has been reclassified to recognize that this claim
was previously denied by the RO in August 2000. The Veteran
was notified of the denial at that time, but did not appeal.
Thus, the claim became final. 38 C.F.R. §§ 3.104, 20.302,
20.1103 (2008).
In further explanation, it is noted that in the Board's 2006
remand, it was reported that this claim for service
connection had, in effect, been raised by physician's
statements of record which suggested that the condition was
related to Agent Orange exposure. Although the RO did not
address this legal theory of entitlement in the August 2000
decision, in Bingham v. Principi, 18 Vet. App. 470, 474 - 75
(2004), the United States Court of Appeal for Veterans Claims
(Court) determined that while there may be different legal
theories of entitlement, there is only one claim for service
connection for each disability, regardless of the theory of
entitlement which is asserted by the claimant. Denial of the
claim on the basis of one theory of legal entitlement does
not mean that the later reassertion of that claim on a
different theory of legal entitlement makes it a different
claim.
While the RO previously denied service connection on the
theory of direct incurrence service connection, and did not
address entitlement to service connection as a residuals of
Agent Orange exposure, the current attempts to focus on
service connection as a residual of Agent Orange exposure
cannot undo the finality of the prior adjudication (which
denied a claim of service connection and not merely a theory
of legal entitlement). Thus, the claim is one of whether new
and material evidence has been received to reopen the issue
of entitlement to service connection for Marie-Charcot-Tooth
disease. This medical evidence would seem to be new and
material, but that is a determination to be made initially by
the originating agency. Further, if benefits are not
granted, a timely notice of disagreement and substantive
appeal would have to be submitted in accordance with other
applicable procedures before this issue is properly before
the Board.
The law also provides that when a determination on one issue
could have a significant impact on the outcome of another
issue, such issues are considered inextricably intertwined
and VA is required to decide those issues together. Harris
v. Derwinski, 1 Vet. App. 180 (1991). In the present case,
as the Veteran has an open claim for entitlement to service
connection (based on the receipt of new and material
evidence) for Marie-Charcot-Tooth disease, to include as a
residual of exposure to Agent Orange. The Board cannot
proceed with the TDIU claim until there has been final
adjudication of the other claim. Thus, adjudication of the
TDIU claim will be held in abeyance pending further
development and adjudication of the veteran's claim of
whether new and material evidence has been received to reopen
the claim of service connection for Marie-Charcot-Tooth
disease, to include as a residual of exposure to Agent
Orange.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the
appellant if further action is required.
REMAND
Additional development requested in the November 2006 Board
remanded included the obtainment of service and VA medical
records. Review of the claims file reflects that these
documents were obtained and added to the claims file.
Additionally, the VA examination requested regarding the
etiology of the Veteran's Charcot-Marie-Tooth disease was
conducted. The resulting report has also been added to the
claims file. Unfortunately, additional development requested
in the remand decision has not been accomplished.
Specifically, in the 2006 remand the Board noted that the
claim for service connection was inextricably intertwined
with the issue of entitlement to a TDIU. Thus, the claim for
a TDIU could not be accomplished until the RO had addressed
the claim of service connection. The Board notes that
consideration of the service connection claim has still not
been accomplished. And, as noted above, the claim should be
considered initially on the basis of whether new and material
evidence has been received to reopen the claim of service
connection for Marie-Charcot-Tooth disease, to include as a
residual of Agent Orange exposure. It is also noted that the
Veteran has not been provided with VCAA regulations and
provisions regarding this issue.
Thus, duty to assist provisions require that the case be
remanded for this development. A remand by the Board confers
upon the veteran, as a matter of law, the right to compliance
with the remand instructions, and imposes upon the VA a
concomitant duty to ensure compliance with the terms of the
remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998).
Under the circumstances, the Board finds that Stegall
requires that this case be remanded to the AMC/RO for
issuance of VCAA duty to assist provisions regarding the
reopening of claims. In Kent v. Nicholson, 20 Vet. App. 1,
10 (2006), the Court held that VA must notify a claimant of
the evidence and information that is necessary to reopen the
claim and VA must notify the claimant of the evidence and
information that is necessary to establish entitlement to the
underlying claim for the benefit sought by the claimant. The
VCAA requires, in the context of a claim to reopen, the
Secretary to look at the bases for the denial in the prior
decision and to respond with a notice letter that describes
what evidence would be necessary to substantiate that element
or elements required to establish service connection that
were found insufficient in the previous denial. Moreover,
Stegall requires that this case be remanded to the AMC/RO for
initial consideration of the issue of whether new and
material evidence has been received to reopen the claim of
entitlement to service connection for Marie-Charcot-Tooth
disease. As noted, this evidence would appear to be new and
material to reopen the claim, but that is for the AMC/RO to
initially determine.
The actions identified herein are consistent with the duties
to notify and assist imposed by pertinent provisions of the
VCAA. See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp.
2008); 38 C.F.R. § 3.159 (2008). However, identification of
specific actions requested on remand does not relieve the
AMC/RO of the responsibility to ensure full VCAA compliance.
Hence, in addition to the actions requested above, the AMC/RO
should also undertake any other development and/or
notification action deemed warranted by the VCAA prior to
adjudicating the claims on appeal.
Accordingly, the case is REMANDED for the following actions:
1. Send the Veteran a VCAA notice
letter, with respect to his claim to
reopen a previously denied claim for
service connection for Marie-Charcot-
Tooth disease, to include as a residual
of Agent Orange exposure. This notice
should include the proper standard for
new and material evidence for claims
filed after August 29, 2001, and an
explanation of what the evidence must
show to reopen this veteran's claim, as
outlined in Kent v. Nicholson, 20 Vet.
App. 1 (2006). The notice must tell the
Veteran the basis for the previous
denial, and what the evidence must show
in order to reopen his claim.
2. Thereafter, and following any other
indicated development, AMC/RO should
adjudicate the issue whether new and
material evidence has been received to
reopen the claim of entitlement to
service connection for Marie-Charcot-
Tooth disease, to include as due to
Agent Orange exposure. If the claim is
not reopened and granted, or if it is
reopened and denied on the merits, the
Veteran and his representative should
be furnished with a supplemental
statement of the case (SSOC) and
afforded the appropriate time to reply.
If and only if the claim is reopened
and granted, the AMC/RO should
readjudicate the issue of entitlement
to a TDIU on a de novo basis.
Thereafter, the case should be returned
to the Board for further consideration,
as indicated.
It is noted that if the service
connection issue is not reopened or is
not granted, to get the matter before
the Board, the appellant must timely
disagree with any negative decision,
and file a timely substantive appeal
after a statement of the case is
issued. In any event, the TDIU issue
should not be returned to the Board
without a decision reached on the
service connection issue.
The Board intimates no opinion on the service connection
issue by any of the development requested herein.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate
action must be handled in an expeditious manner. See 38
U.S.C.A. §§ 5109B, 7112 (West Supp. 2008).
_________________________________________________
MICHAEL D. LYON
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2008).